OP (DRT) No. 527 of 2023 — George Joseph & Others vs. Authorized Officer, J.M. Financial Asset Reconstruction Company Ltd. & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 18[TH] DAY OF DECEMBER 2023/27TH AGRAHAYANA, 1945** **OP (DRT) NO. 527 OF 2023** **AGAINST THE JUDGMENT DATED 10.11.2023 IN SA.85 OF 2021 OF DEBT RECOVERY TRIBUNAL-2, ERNAKULAM** ## **PETITIONERS/APPLICANTS IN SA:** - **1 GEORGE JOSEPH, AGED 62 YEARS, PARATHALACKAL HOUSE, MUTHALAKODAM P.O., THODUPUZHA VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN – 685605** **2 SOPHIYAMAMA GEORGE, AGED 60 YEARS, W/O.GEORGE JOSEPH, PARATHALACKAL HOUSE, MUTHALAKODAM P.O., THODUPUZHA VILLAGE, THODUPUZHA TALUK, IDUKI DISTRICT, PIN – 685605** **3 ARUN JOSE GEORGE, AGED 29 YEARS, S/O.GEORGE JOSEPH, PARATHALACKAL HOUSE, MUTHALAKODAM P.O., THODUPUZHA VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT, REP. BY P.A.HOLDER GEORGE JOSEPH, THE 1ST PETITIONER., PIN – 685605** **BY ADVS. SHRI.S.EASWARAN SHRI.P.MURALEEDHARAN (IRIMPANAM) SHRI.P.SREEKUMAR (THOTTAKKATTUKARA) SHRI.K.V.RAJESWARI SHRI.AUGUSTINE JOSEPH** O.P.(DRT) No.527/2023 : 2 : ## **RESPONDENTS/DEFENDANTS IN SA:** - **1 AUTHORISED OFFICER, J.M. FINANCIAL ASSET RECONSTRUCTION COMPANY LTD., 4TH FLOOR, BASAPPA COMPLEX, LAVELLE ROAD, BANGALORE, PIN - 560061** - **2 M/S.J.M.FINANCIAL ASSET RECONSTRUCTION COMPANY LTD., 7TH FLOOR, CNERGY, APPASAHEB MARATHE MARG, PRABHADEVI. MUMBAI- REPRESENTED BY ITS AUTHORISED OFFICER, PIN - 400025** - **3 GEORGE MATHEW, AGED 45 YEARS, SON OF MATHEW, MARUTHANAMKUZHY HOUSE, THURAVOOR P.O., THURAVOOR VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT, PIN - 683572** - **4 DEEPTHI GEORGE, AGED 36 YEARS,** - **WIFE OF GEORGE MATHEW, MARUTHANAMKUZHY HOUSE, THURAVOOR P.O., THURAVOOR VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT, PIN - 683572** - **5 SHIBU ISSAC, AGED 39 YEARS, THENGODU KARA., V.K. COLONY P.O., THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN - 682021** - **6 SMT. A. SANKARA PADMA AMBEDKAR, AGED 58 YEARS, H.NO.30/24 ,3RD MAIN ROAD, TIRUCHIRAPALLY - 620001, TAMIL NADU.** **7 SMT. DHAARUNIKA, AGED 29 YEARS, D/O.AMBEDKAR, H.NO.30/24 ,3RD MAIN ROAD, TIRUCHIRAPALLY - 620001, TAMIL NADU. BY ADVS. SHRI.RAJU JOSEPH AND ANOTHER SHRI.MADHU RADHAKRISHNAN SHRI.SINDHU RAVICHANDRAN(K/948-A/1998)** **THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 18.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(DRT) No.527/2023 : 3 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## O.P.(DRT) No.527 of 2023 ````````````````````````````````````````````````````````````` _Dated this the 18[th] day of December, 2023_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The 1[st] petitioner is the owner of various pieces of land situated in Kattappana. The 2[nd] and 3[rd] petitioners also hold land in Kattappana. The sale deeds in respect of the afore properties were executed by respondents 3 to 5. The petitioners were in possession and enjoyment of land since 01.01.2009. 2. The petitioners state that the total sale consideration paid by the petitioners towards the 11 sale deeds is ₹4,27,30,000/-. The pieces of land are part of cardamom plantation. 3. When the properties were transferred to the petitioners, respondents 3 to 5 had already mortgaged the O.P.(DRT) No.527/2023 : 4 : properties to the Federal Bank Limited. When original title deeds were asked for, respondents 3 to 5 threatened the petitioners that the documents would be given only when the petitioners close the loan accounts with the Federal Bank Limited. 4. The petitioners instituted a Suit before the vacation court, Thodupuzha on 07.05.2011 and the court restrained respondents 3 to 5 from interfering with the peaceful possession and enjoyment of the petitioners with respect to 42.73 Acres of land. Subsequently, there were arrangements between the petitioners and respondents 3 to 5. The petitioners got the land mutated in their favour and the petitioners started to remit basic tax. 5. The Federal Bank Limited filed OA No.246/2012 against respondents 3 to 5 and others for realisation of ₹15,40,19,818.57. The items of properties scheduled in the OA included the properties assigned to the petitioners also. Later, the 1[st] respondent, who is the Authorised Officer of the Federal Bank, initiated securitisation proceedings against O.P.(DRT) No.527/2023 : 5 : respondents 3 to 5. To the surprise of the petitioners, the properties assigned to the petitioners were also included in the Section 13(2) notification. 6. The petitioners state that they are the actual owners of the properties scheduled in the sale certificate dated 13.01.2021. Sections 13(2) and 13(4) notices were not served on them. The proceedings initiated by the 1[st] respondent against the properties assigned to the petitioners is illegal and invalid. The petitioners therefore approached the Debts Recovery Tribunal, Ernakulam filing SA No.85/2021 seeking to set aside the Sale Certificate issued in favour of respondents 6 and 7. The SA filed by the petitioners was admitted to file. Summons were issued to the respondents. 7. Respondents 6 and 7 tried to sell the property of the petitioners. The petitioners therefore filed OP(DRT) No.167/2022. This Court granted Ext.P3 interim order restraining respondents 6 and 7 from alienating the properties of the petitioners. Later, this Court disposed of O.P.(DRT) No.527/2023 : 6 : OP(DRT) No.167/2022 as per Ext.P4 judgment directing the petitioners to pursue their remedies in the Debts Recovery Tribunal. 8. The petitioners state that the Debts Recovery Tribunal has dismissed SA No.85/2021 filed by the petitioners holding that the petitioners are third parties and have no _locus standi_ to file a Securitisation Application. The petitioners are aggrieved by Ext.P6 order. The question as to whether the petitioners have _locus standi_ or not is no longer _res integra_ . The petitioners have purchased the property after the mortgage was created. Creation of mortgage was not disclosed to the petitioners. In view of Section 60 of the Transfer of Property Act, 1882, the petitioners having purchased the equity of redemption are entitled to redeem the property. This aspect was completely ignored by the Tribunal, contend the petitioners. 9. The petitioners urged that the finding of the Tribunal that the petitioners are not entitled to exercise the right of redemption in view of Section 13(8) of the O.P.(DRT) No.527/2023 : 7 : Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 is erroneous and perverse. 10. The counsel for the petitioners urged that the Tribunal while dismissing the Securitisation Application has not adverted to the dictum laid down by the Apex Court in _**ITC Limited v. Blue Coast Hotels** [(2018) 15 SCC 99]_ . In the facts of the case, Ext.P6 order of the Debts Recovery Tribunal-II, Ernakulam is liable to be set aside, contended the counsel fo the petitioners. 11. The respective counsel for respondents 1, 6 and 7 resisted the OP(DRT). The respondents denied all the material allegations made by the petitioners in the OP(DRT). The petitioners have an efficacious alternate remedy of appeal before the Debts Recovery Appellate Tribunal, contended the respondents. The respondents have not advanced any legal grounds to entertain a petition under Article 227 of the Constitution of India. In the facts of the case, the OP(DRT) should be dismissed, contended the O.P.(DRT) No.527/2023 : 8 : respondents. 12. I have heard the learned counsel for the petitioners, the learned Standing Counsel representing respondents 1 and 2 and the learned counsel appearing for respondents 6 and 7. 13. The petitioners are aggrieved by Ext.P6 order in SA No.85/2021 of the Debts Recovery Tribunal-II, Ernakulam. In SA No.85/2021, the petitioners challenged issuance of Annexure-A18 Sale Certificate in favour of the 6[th] and 7[th] respondents. The petitioners urged before the Tribunal that they had purchased the property executing registered sale deeds. The petitioners would urge that in terms of the provisions of Section 60 of the Transfer of Property Act, 1882, the petitioners having purchased equity of redemption, are entitled to redeem the property, though there was a prior mortgage. The question as to whether the petitioners derived title over the property was not an issue before the Tribunal. O.P.(DRT) No.527/2023 : 9 : 14. The further case of the petitioners is that the property in question is cardamom plantation. The Hon’ble Apex Court in _**Indian Bank v. Pappy Reddy**_ (Civil Appeal No.6646/2018) has held that the question as to whether a particular land is agricultural land or not is dependent upon the nature of the land which is put to use on the date of creation of equitable mortgage. Ext.P1 document would show that the land in question is a cardamom plantation and therefore the Bank is disabled from proceeding against the agricultural land. 15. It is to be kept in mind that against the orders of the Debts Recovery Tribunal, the petitioners have an efficacious and alternate statutory remedy by way of appeal under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 before the Debts Recovery Appellate Tribunal. Therefore, the petitioners have to invoke the statutory appellate remedy to challenge Ext.P6 order. High Courts cannot as a matter of routine, exercise its power of O.P.(DRT) No.527/2023 : 10 : superintendence under Article 227 and interfere with the orders of Tribunals or courts inferior to it. The High Court cannot also exercise its powers under Article 227 to act as a court of appeal over the orders of the courts or Tribunals subordinate to it. Where an alternate statutory mode of redressal has been provided, that would operate as a restrain over the exercise of power by the High Court. 16. The High Court can interfere with the orders of the Tribunals only to keep the Tribunals and courts subordinate to it within the bounds of their authority. The High Courts can also interfere in exercise in its power of superintendence, when there has been a patent perversity in the orders of the Tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. High Courts cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the Tribunals or courts subordinate to it, is a possible view. The jurisdiction under Article 227 has to be very sparingly exercised. O.P.(DRT) No.527/2023 : 11 : 17. The petitioners would urge that the Tribunal has not adverted to legal position laid down by a Division Bench of this Court in _**Muhammed Basheer v. Kannur District Co-operative Bank Limited** [2010 (2) KLT 577]_ and the judgment of the Hon’ble Apex Court in _**ITC Limited v. Blue Coast Hotels** [(2018) 15 SCC 99]_ . The further grievance of the petitioners is that the Tribunal has not taken into consideration the fact that the land being proceeded against under the Securitisation Act is a cardamom land. 18. I am of the considered view that even if the contentions of the petitioners are accepted, those factors will not justify invocation of Article 227 by this Court to interfere with the final order of the Debts Recovery Tribunal, when the statute has prescribed an appeal against the orders of the Debts Recovery Tribunal. The OP(DRT) therefore fails and it is dismissed. Sd/- **N. NAGARESH, JUDGE** aks/18.12.2023 O.P.(DRT) No.527/2023 : 12 : ## **APPENDIX OF OP (DRT) 527/2023** **PETITIONERS' EXHIBITS:** **Exhibit P1 COPY OF THE SECURITISATION APPLICATION (S.A.NO.85 OF 2021) DATED 12.2.2021 ALONG WITH ITS ANNEXURES Exhibit P2 COPY OF THE INTERLOCUTORY APPLICATION DATED 12.2.2021 FILED IN SA 85 OF 2021 Exhibit P3 COPY OF THE INTERIM ORDER DATED 23RD FEBRUARY, 2022 IN I.A.NO.1 OF 2022 IN OP(DRT)NO.167 OF 2022 Exhibit P4 COPY OF THE JUDGMENT DATED 26TH MAY, 2022 IN OP(DRT)NO.167 OF 2022 Exhibit P5 COPY OF THE WRITTEN STATEMENT ALONG WITH THE DOCUMENTS Exhibit P6 COPY OF THE ORDER DATED 10TH NOVEMBER, 2023 IN S.A.NO.85 OF 2021** SR